No referendum for critics of Ohio tort reform law

By John O'Brien | Oct 31, 2007



COLUMBUS, Ohio - A lack of public interest may finally make Senate Bill 117 permanently a law.

A petition-building drive organized by critics of the tort reform law did not collect enough signatures to order a special referendum on the bill, which became law on Aug. 1. In part, the law bars the use of public nuisance arguments in cases of products liability, which has become a controversial subject to former lead paint manufacturers.

State Secretary of State Jennifer Brunner said the petition had less than 100,000 signatures and needed 241,366, according to a report in the Columbus Dispatch. It also did not have a specified number of names from half of Ohio's 88 counties.

The report also says that Laura McDowell, an Akron attorney representing critics of S.B. 117, may put the bill against another challenge before the Supreme Court. This time, the time given to gather signatures would be disputed.

A condensed history of the bill shows:

-Ohio's Legislature passed the bill Dec. 26, 2006, and passed it on to Gov. Bob Taft. Taft neither vetoed it or signed it by the time he left office, effectively passing it into law;

-New Gov. Ted Strickland vetoed the bill on his first day, Jan. 6, arguing the 10-day period during which the bill could be signed or vetoed had not expired. Attorney General Marc Dann applauded the move and defended it against the Legislature's challenge;

-On Aug. 1, a 5-2 decision by the Supreme Court held Strickland's veto invalid;

-Two weeks later, Brunner asked the Court if that meant a 90-day period to gather signatures for a referendum had begun when the law was first passed or if it began with the Court's ruling.

-On Sept. 4, it ruled for the latter, giving critics of 117 until Oct. 30 to put together a petition.

Critics say public nuisance claims are a way around the shortcomings of a products liability case, like the now expired statute of limitations. Lead paint was outlawed in 1978, and companies stopped manufacturing it, though it still coats many buildings.

Plaintiffs firm Motley Rice is credited with the idea of using a public nuisance claim to sue paint companies and is representing several of the municipalities, counties and states attempting to do so.

The companies have successfully defended themselves in New Jersey, Missouri and Wisconsin. The plaintiffs have succeeded in Rhode Island, where an appeal to the state's Supreme Court is pending.

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